COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khairi, 2015 ONCA 279

DATE: 20150422

DOCKET: C56660

Strathy C.J.O., Doherty and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Khairi

Appellant

Richard Litkowski, for the appellant

Christine Tier, for the respondent

Heard: April 15, 2015

On appeal from the conviction entered on November 11, 2012 and the sentence imposed on December 7, 2012 by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury.

By the Court:

iNTRODUCTION

[1] The appellant was convicted of second degree murder for the stabbing and killing of his wife, Ranjdida Khairi.

[2] The victim was killed in the family apartment where she lived with the appellant and their six children. There was evidence that the appellant was abusive and that his wife had told him that she was going to leave him and take the children with her.

[3] The appellant admitted the killing. He contended that he lacked the intent for murder due to mental health issues. Alternatively, he claimed that he stabbed his wife in the heat of passion, caused by her allegedly provocative words and conduct.

[4] The circumstances of the killing were horrific. The fatal wound sliced through the victim’s neck, cutting through her neck muscles and voice box and nicking her spine. The appellant also stabbed her five times in the torso. Two knives were used in the attack. The medical evidence indicated that the flow of blood into the victim’s airway would have impaired her breathing, but she may have been conscious for up to five minutes before death.

[5] The appellant was sentenced to life imprisonment, with a minimum period of 15 years of parole ineligibility. He appeals his conviction and seeks leave to appeal his sentence.

ANALYSIS

[6] The grounds of appeal of conviction are as follows:

(a) the trial judge erred in failing to grant a mistrial after the Crown’s inflammatory opening and by failing to give any ameliorating instruction after the Crown’s inappropriate closing;

(b) the trial judge erred in failing to give a W.D. instruction in response to a question from the jury;

(c) the trial judge misstated the evidence of one of the expert witnesses; and

(d) the trial judge failed to properly relate the evidence to the statutory defence of provocation.

(a) The Crown opening and closing

[7] We agree with the submission of counsel for the appellant that the opening statement of the Crown (who was not counsel on appeal) was improper. As he points out, the facts would quite understandably evoke a sense of revulsion in the jury and restraint was required. The opening was inflammatory, argumentative and lengthy.

[8] Immediately after the Crown’s opening, defence counsel indicated that he intended to bring a motion for a mistrial. The trial judge said he had anticipated that motion and invited counsel to make submissions. The appellant’s counsel said he needed time to prepare the motion and asked the trial judge to recess over the long weekend before hearing submissions.

[9] The mistrial motion was heard the following Tuesday. At the end of the submissions, the trial judge dismissed the motion, concluding that the prejudice could be addressed by a jury instruction. He proceeded to instruct the jury that the Crown’s remarks exceeded the scope of a proper opening statement. He told them that the facts of the case were not proven until they found them so, the opening statement was not the proper place for argument and they should disregard argument. He also cautioned the jury that they were required to consider the evidence dispassionately and should not permit the nature of the wounds or the Crown’s references to them to inflame or prejudice them against the appellant.

[10] It is disturbing that after repeated references by this court to the responsibility of Crown counsel to display restraint and impartiality in addressing the jury, instances of rhetorical over-zealousness continue to occur: see R. v. A.T., 2015 ONCA 65, at paras. 26-31; R. v. Mallory, 2007 ONCA 46, 220 O.A.C. 239, at paras. 338-340.

[11] Having said that, it is well settled that a trial judge has the discretion to determine whether to grant a mistrial: see R. v. A.G., 2015 ONCA 159, at para. 51; Mallory, at para. 343. The appellant has identified no error that would warrant our intervention and we dismiss this ground of appeal. We would add that any prejudice that might have been caused by the opening was properly addressed through the trial judge’s instruction.

[12] Nor do we give weight to the submission that the Crown closing was improper or required a jury instruction. The appellant’s principal submission on this issue is that the Crown invited the jury to speculate on the manner of the killing – namely, that the appellant first cut her throat, causing massive blood loss and then, to hasten her death, held her down and proceeded to inflict five wounds to her torso with a different knife.

[13] It is accepted that the closing may contain some measure of argument and advocacy: R. v. Boudreau, 2012 ONCA 830, 104 W.C.B. (2d) 862, at para. 15; Mallory, at paras. 339-40. The sequence of stabbings was relevant to the appellant’s intent and the Crown’s closing tied the evidence to this issue. The Crown’s theory was supported by the evidence and it was entitled to put that theory to the evidence. We see no error.

(b) The jury question and W.D.

[14] The appellant submits that the trial judge erred by not giving a W.D. instruction in response to one of several questions asked by the jury. In answering the jury’s second question, the trial judge, at the request of the appellant, included a W.D. instruction. The charge itself had included a W.D. instruction.

[15] The third and fourth questions were related and bore some similarity to the second question. Essentially, the jury asked whether, if they rejected certain portions of the appellant’s evidence concerning a sequence of events, they were nevertheless entitled to accept other parts of his evidence.

[16] In his submissions concerning the proposed answer to these questions, the appellant’s counsel asked for another “brief recital of the W.D. instruction.”

[17] The trial judge rejected this request, observing that the jury’s question was simply about the fact-finding process and not about the burden of proof. He pointed out that he had given the W.D. instruction two hours earlier in response to the jury’s second question. He proceeded to answer the third and fourth jury questions by re-instructing the jury on their entitlement to believe none, some or all of the evidence of a witness and told them that whether they accepted some parts of the evidence and rejected other parts was a matter of logic and common sense. He elaborated with examples, told them they must examine all the evidence and cautioned that they must not engage in conjecture and speculation.

[18] We do not accept the appellant’s submission on this issue. The trial judge’s charge explained the presumption of innocence, the burden of proof, the requirement of proof beyond a reasonable doubt and the practical operation of the principles in W.D. He repeated the W.D. instruction in his answer the second jury question.

[19] What the jury needed by way of answer to the third and fourth questions, and what the trial judge gave them, was a clear repetition and elaboration of his instruction that they were entitled to accept none, some or all of the appellant’s evidence and that they were to apply logic and their own common sense. The jury’s questions, considered in context, did not call for a repetition of the W.D. instruction. We agree with the respondent that such an instruction might have confused the jury, rather than enlightening them. We therefore reject this ground of appeal.

(c) The expert evidence

[20] The appellant submits that the trial judge failed to give a fair, accurate and balanced summary of the evidence of Dr. John Bradford, a psychiatrist called by the defence.

[21] Dr. Bradford interviewed the appellant some four years after the killing. He diagnosed him as having post-traumatic stress disorder and recurrent major depression. Depending on the circumstances, this could have made him irritable and more prone to losing his temper. Dr. Bradford expressed the opinion, however, that the appellant would have known what he was doing at the time and could appreciate whether it was right or wrong.

[22] The appellant was subjected to a number of tests including tests measuring his cognitive functioning and tests to determine whether he might be malingering.

[23] Dr. Bradford testified that the appellant performed in the low range in some of the tests, not because he had cognitive difficulties but because he made a poor effort on the test. The appellant was tested to determine whether he was malingering amnesia and the test showed that he was.

[24] The appellant asserts that the trial judge’s references to “malingering amnesia” undermined his defence based on diminished capacity. He notes that Dr. Bradford also testified that the appellant’s memory difficulties were real and were linked to post-traumatic stress disorder and depression.

[25] In our view, the trial judge painted a fair picture of Dr. Bradford’s evidence. He told the jury that Dr. Bradford diagnosed the appellant as having several recognized mental disorders and told them they could rely on his opinions, provided they found a factual basis for them. Much of Dr. Bradford’s opinion was based on the appellant’s recounting of his personal and medical history. The jury had the benefit of hearing from the appellant himself and would have been able to compare their assessment of his evidence with the information he recounted to Dr. Bradford. The references to the appellant’s malingering did not misstate or distort the evidence.

[26] We therefore reject this ground of appeal.

(d) Provocation

[27] The trial judge gave a “rolled up” charge, referring to the evidence concerning the appellant’s mental health, marital issues and the allegedly provocative words and conduct of the victim on the issue of intent for murder. He also gave a lengthy instruction on provocation. At the conclusion of that instruction, he told the jury that as he had already referred to the main parts of the evidence concerning the appellant’s mental condition and his relationship with his wife, he was not going to repeat that evidence, but told them to consider it in relation to the partial defence of provocation.

[28] In response to a defence objection at the end of the charge, the judge gave a further instruction, telling the jury that they were required to consider the appellant’s evidence concerning the allegedly provocative actions and words of his wife in relation to the issues of intent and the partial defence of provocation. He also told them that those actions and words, standing alone, could be a sufficient basis for them to have a reasonable doubt about whether he had the intent for murder.

[29] In our view, the trial judge was not required to repeat his review of the evidence relating to provocation: see R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 14. Having heard the evidence reviewed once, the jury did not have to hear it again.

[30] The appellant also says the trial judge failed to explain that conduct that fails the “ordinary person” test on provocation in s. 232 of the Criminal Code must nevertheless be considered in determining whether he had the necessary intent for murder. He says that in the absence of such an instruction, the jury may have thought that the evidence was only relevant to intent if it met the specialized meaning of s. 232 – see R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, at paras. 54-69, aff’d. 2014 SCC 64, [2014] 3 S.C.R. 283.

[31] In our view, Bouchard is inapplicable. In that case, the majority found that the trial judge had told the jury that the statutory definition of provocation was applicable to “assessing the impact of the deceased’s allegedly provocative conduct on the appellant’s mens rea.” It was not made clear to the jury that the victim’s acts and words and the appellant’s response to them were relevant to the appellant’s state of mind, even if they did not meet the statutory requirements of provocation.

[32] We agree with the respondent that this charge, both in structure and content, did not display a similar error.

(e) The sentence appeal

[33] The Crown had asked for a 17-year period of parole ineligibility. The defence had asked for a period of ten to eleven years, based on the appellant’s mental health problems, his age and the absence of any record of violence.

[34] The appellant submits that in arriving at a 15-year period of parole ineligibility the trial judge underemphasized mitigating factors and overemphasized aggravating factors.

[35] The trial judge gave lengthy reasons for sentence. He rejected most of the appellant’s evidence unless it was independently corroborated.

[36] We accept the appellant’s submission that the trial judge erred in stating that the jury’s verdict was necessarily a rejection of the appellant’s evidence concerning the victim’s provocative words and actions. The jury may have accepted his evidence, but concluded that the conduct did not reduce his intent or rise to the level of provocation. We are not satisfied, however, that this error had a material effect on the sentence.

[37] The trial judge identified relevant mitigating and aggravating factors. The mitigating factors included:

• the fact that the appellant was a first offender;

• the appellant’s age, which he found was 65, rejecting the appellant’s evidence that he was 75;

• the absence of prior violence, although the spousal relationship was turbulent and frequently involved verbal abuse by both parties; and

• to a limited degree, the appellant’s psychological and psychiatric difficulties.

[38] He also identified aggravating factors, including:

• the fact that the victim was the appellant’s spouse;

• the vulnerability of the victim;

• the use of multiple weapons (the two knives);

• the appellant’s attempts to demean the character and memory of the deceased;

• the impact of the killing on his children; and

• the appellant’s lack of appreciation of the enormity of his actions.

[39] The trial judge’s balancing of these factors attracts deference: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 44-46. The appellant has identified no error in principle; nor is the sentence clearly unreasonable, demonstrably unfit or outside the appropriate range: see R. v. Oliver (2005), 2005 CanLII 3582 (ON CA), 194 O.A.C. 284 (C.A.), at para. 49. There is no basis on which to interfere with the trial judge’s exercise of discretion.

disposition

[40] For these reasons, the conviction appeal is dismissed. While we grant leave to appeal the sentence, the sentence appeal is dismissed.

“G.R. Strathy C.J.O.”

“D. Doherty J.A.”

“E.E. Gillese J.A.”

Released: April 22, 2015